16 June 2023

Chloe Anthony, Doctoral Researcher at University of Sussex Law School and Legal Researcher for the UK Environmental Law Association’s Governance and Devolution Group.

The Retained EU Law (Revocation and Reform) Bill is part of the Government’s ‘Brexit opportunities’ agenda. It is currently in its final stages in Parliament, going back and forth between the Houses, in a debate on the inclusion of clauses that aim to safeguard parliamentary scrutiny and prevent the lowering of environmental protections. It returns to the Commons on 20 June.

The Bill will ‘sunset’ or revoke a list of 587 retained EU laws at the end of 2023 and gives powers to Ministers to restate, reproduce, revoke or replace retained EU law (REUL). While many of the REUL laws to be revoked at the end of December are understood to be ‘no longer in operation, or no longer relevant to the UK’, the Bill is controversial because it gives significant powers to Ministers and devolved authorities to change REUL and risks a lowering of standards. It also changes the way courts may depart from retained EU case law.

Key amendments in the Lords seek to address these concerns and, by introducing further checks on these powers, safeguard parliamentary scrutiny and lowering of environmental protection. The environmental non-regression clause would require that Ministers, when amending REUL, shall not lower environmental protection. This amendment has been rejected by Government as ‘unnecessary’ to maintain environmental protections. But does the Bill make sense without the commitment to non-regression on environment? Could the removal of the non-regression clause threaten the level playing field that underpins the UK-EU Trade and Cooperation Agreement (TCA)?

Government Ministers have repeatedly rejected the non-regression clause saying it is unnecessary due to the Government’s commitment to maintaining and improving UK environmental protection and because it would be too heavy an administrative burden in reviewing and amending REUL.

Those arguing for such an amendment say it is an essential legal safeguard to protect against lowering of standards and to ensure due process in reviewing REUL relating to the environment. The Office for Environmental Protection has recommended that a non-regression requirement ‘should be added to the Bill as a minimum measure.’

The Lords’ amendment would introduce procedural requirements that any REUL should not be revoked unless the relevant Minister or devolved authority is satisfied that the level of environmental protection would not be reduced. They must also be satisfied that the regulations do not conflict with international environmental agreements. They should seek advice from independent experts, and publish a report, before making changes. Notably, there is no distinction made as to how significant any instrument of REUL is and there are no requirements for public debate or consultation in the amendment.

The TCA rests on the so-called ‘level playing field’ that is underpinned by the UK’s and EU’s commitment to non-regression on environmental and climate protections and associated dispute mechanisms. This commitment to non-regression in the TCA is, in turn, safeguarded through existing non-regression clauses in UK domestic legislation relating to trade. Further, the Environment Act includes a non-regression clause that relates to the introduction of new environmental law, but it allows for the Government to proceed even where there is deemed to be a lowering of protection.

While the TCA may not require the introduction of non-regression clauses, these have already been introduced in post-Brexit trade-related legislation, so why not in the REUL Bill which deals directly with the revocation and reform of REUL as the regulatory baseline that underpins the TCA? We consider elsewhere whether the EU will take action on UK regression on environmental protection and food standards. Such a clause would certainly help provide assurance that the UK is committed to non-regression on environmental protection and food standards, domestically and internationally, and that changes to REUL are undertaken after advice has been sought from independent experts.

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